Regulatory agencies and courts have often had trouble defining exactly how the authority between an attorney and her client should be allocated. It is often said that the lawyer can make decisions as to tactics while the client has the right to make decisions that relate to the objectives of the representation. This language is derived from Model Rule 1.2, which in one way or another serves as the model for most jurisdictions, which states that a lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued.
As the comment to the rule explains, however, even though sometimes a lawyer and a client disagree about the means to be used to accomplish the client’s objectives, the rule does not prescribe how such disagreements are to be resolved. Thus, lawyers are left to interpret the rule as best as they can under the circumstances. This is not always easy given that sometimes what can be argued to be a tactical decision can affect a fundamental right of the client.
The rule does, however, set some limits to the lawyers authority to make decisions for the client. For example, in a criminal case a lawyer can’t take away from the client the right to decide whether to agree to a plea offer, whether to testify and whether to waive jury trial.
Thus, one would think that if the decision involves one of these fundamental rights, the attorney must consult the client (at least) and that it is the client who has the right to make the final decision.
Thanks to a recent decision of the Supreme Court of Massachusetts, however, even this is not as clear anymore - at least in that jurisdiction.
Earlier this year, in Commonwealth v. Lavoie, 981 N.E.2d 192 (Mass. 2013), the court was asked to consider whether a Superior Court judge properly denied a criminal defendant’s motion for a new trial, in which he claimed that his right to a public trial was violated when his counsel failed to object to the exclusion of family members from the court room during jury selection. The trial judge denied the defendant’s motion, but the Appeals Court concluded that the defendant’s right to a public trial was violated and reversed.
On appeal, the state supreme court reversed holding that counsel may waive a defendant’s right to a public trial during jury selection without his client’s express consent because the decision was tactical.
In my opinion, this decision is wrong. It contradicts the fundamental basis of the allocation of authority within the attorney-client relationship and illustrates the difficulty of explaining the proper allocation in terms of “tactics", "means" or "objectives.”
The facts of the case are relatively simple. When the jury selection for the defendant’s trial began, court officers excluded his family from the court room. The defendant’s attorney did not object. After his conviction, the defendant moved for a new trial, arguing that his right to a public trial under the Sixth and Fourteenth Amendments to the United States Constitution was violated when the court officers closed the courtroom to the public during the voir dire.
The judge, who was not aware that the officers had excluded the defendant’s family until he filed his motion for a new trial, conducted an evidentiary hearing during which the defendant’s lawyer testified that “it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with court officers who he perceived engaged in a difficult job.” The attorney also explained that he thought the defendant’s family members “could present a distraction.”
After the hearing, the judge concluded that the two-day closure of the court room violated the defendant’s Sixth Amendment rights, but denied the motion for a new trial because “there was no miscarriage of justice” because, among other things, “defense counsel’s failure to object to the closure was a reasonable tactical decision.”
At this point, I wonder how it is that it can be a tactical decision to make a decision that belongs to the client and that is so fundamental that taking it away from the client results in a violation of the client’s constitutional rights.
But, let’s continue.
On appeal from the judge’s ruling, a divided Appeals Court reversed concluding that the defendant’s right to a public trial had been violated. (As I hinted above, I would think that is the correct view on this.)
However, the story does not end there. The case then went to the state supreme court, which agreed with the trial judge. The opinion is available here.
The court clearly understood that the decision in the case depended on an understanding of the allocation of authority to make decisions within the attorney-client relationship. The court explained that an attorney is best equipped to make choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance because they depend upon “tactical considerations.” But, as the court explains, in order to preserve the basic rights of the accused, when it comes to fundamental rights, it is the defendant who has the right decide to waive his or her rights.
Once the court cites numerous US Supreme Court cases to explain that a criminal defendant has a constitutional right to a public trial, which includes the jury selection process one would think it would conclude the decision whether to waive the constitutional right belonged to the client. Yet, it did not. It ruled that the attorney could make the decision without consulting the client because it was tactical.
What I don’t understand is how the decision to waive a constitutional right of a client without consulting the client can ever be considered to be a tactical decision. How is it that the lawyer can deprive the client of the opportunity to make a choice that the constitution (and the rules of professional conduct) clearly say belongs to the client?
Simply stated, if it is clear that it is the client who has the right to make the decision, the court should not say the lawyer can make the decision for the client. Otherwise, an attorney could always claim the decision was tactical. Isn’t it tactical to decide whether to plead guilty to avoid a trial? If so, then the attorney could decide for the client. Isn’t it a tactical decision to waive the right to a jury trial? Then why not allow the attorney to decide for the client?
The decision to waive a public trial is no more tactical than the decision to waive a jury trial. In both cases, the decision affects the client’s fundamental constitutional rights and, thus, the attorney should not be allowed to decide for the client without consultation.
According to the court, an attorney can waive a client's constitutional right without consent if the attorney does so as part of a tactical decision. In my opinion waiving a client's constitutional right should never be considered a tactical decision. It is a decision that belongs to the client.